| People v Gill |
| 2019 NY Slip Op 00004 [168 AD3d 1140] |
| January 3, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Rasheed Gill, Appellant. |
Catherine A. Barber, Guilderland, for appellant.
P. David Soares, District Attorney, Albany (Noel Mendez of counsel), for respondent.
Rumsey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered September 28, 2016, upon a verdict convicting defendant of the crimes of attemptedassault in the first degree and assault in the second degree.
Defendant was charged by indictment with attempted assault in the first degree and assault inthe second degree based on allegations that he struck the victim in the head with a hammer. Aftera jury trial, defendant was convicted as charged and was sentenced to concurrent prison terms ofseven years on each conviction, to be followed by a maximum of five years of postreleasesupervision. Defendant appeals.
Defendant contends that his conviction for attempted assault in the first degree is notsupported by legally sufficient evidence because there was no evidence that he intended to causeserious physical injury to the victim and that the verdict as to both convictions is against theweight of the evidence. Defendant's legal insufficiency challenge is unpreserved for our reviewbecause he did not specifically raise the intent issue in his motion for a trial order of dismissal(see People v Williams, 163 AD3d1160, 1161 [2018]; People vStokes, 159 AD3d 1041 [2018]). Nevertheless, in conducting our weight of the evidencereview, we must consider whether each element of the charged crimes was proven beyond areasonable doubt (see People v Williams, 163 AD3d at 1161).
"When undertaking a weight of the evidence review, we must first determine whether, basedon all the credible evidence, a different finding would not have been unreasonable and thenweigh the relative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony to determine if the verdict is supported by theweight of the evidence. When conducting this review, we consider the evidence in a neutral lightand defer to the jury's credibility assessments" (People v Creech, 165 AD3d 1491, 1492 [2018] [internal quotationmarks and citations omitted]). As relevant here, a person commits attempted assault in the firstdegree by using a deadly weapon or dangerous instrument with the intent to cause seriousphysical injury to a person (see Penal Law §§ 110.00, 120.10 [1]), andserious physical injury is a "physical injury which creates a substantial risk of death, or whichcauses death or serious and protracted disfigurement, protracted impairment of health orprotracted loss or impairment of the function of any bodily organ" (Penal Law§ 10.00 [10]). A person commits assault in the second degree, as relevant here,when, "[w]ith intent to cause physical injury to another person, he [or she] causes such injury tosuch person or to a third person by means of a deadly weapon or a dangerous instrument" (PenalLaw § 120.05 [2]), and physical injury "means impairment of physical condition orsubstantial pain" (Penal Law § 10.00 [9]).
The charges arose out of an incident that occurred in December 2015 at a residence in theCity of Albany where defendant's son and the mother of defendant's son lived. The victimtestified that he and the mother, who had attended high school together, had a conversation onthe front porch that lasted approximately 15 minutes. As the victim hugged the mother goodbye,defendant, who lived nearby but had not previously been present, suddenly approached the victimfrom behind and struck him four to five times in the back of the head with a hammer. Thevictim—who was much larger than defendant—was able to restrain defendant onthe ground for approximately 10 to 15 minutes until two police officers—Phillip Durandand Jacob Conlin—responded. Durand testified that when he arrived at the scene, hefound defendant holding a hammer in his right hand while being pinned to the ground by thevictim and that the victim had a large lump and numerous lacerations on his head that hadresulted in significant bleeding. Conlin corroborated Durand's description of the victim's injuriesand noted that the only injuries that defendant exhibited were minor scrapes on his hands andknuckles. After he was restrained in handcuffs, defendant spontaneously asked Conlin, "[W]hatwould you do if that guy was coming out of your girl's house?" Additionally, after he had beentransported to the police station, defendant asked if Durand "had ever been in love" before. Attrial, a resident of the neighborhood testified that he saw defendant walk to the porch of theresidence carrying only a cell phone and that, after a verbal altercation, the victim pusheddefendant and approached him with an object that the neighbor could not clearly see or identify;however, the neighbor was unable to see the remainder of the altercation.
A different verdict would not have been unreasonable on either charge in light of theneighbor's testimony, which was consistent with defendant's argument that he had acted inself-defense. However, upon viewing the evidence in a neutral light and deferring to the jury'scredibility assessments, we conclude that the verdict is not against the weight of the evidence.With respect to attempted assault in the first degree, testimony that defendant struck the victim inthe head with a hammer establishes beyond a reasonable doubt that defendant intended to causeserious physical injury to the victim (seePeople v Andrews, 78 AD3d 1229, 1230-1231 [2010], lv denied 16 NY3d 827[2011]; People v Holmes, 9 AD3d689, 691 [2004], lv denied 3 NY3d 675 [2004]; see also People v Alvarado,262 AD2d 710, 711 [1999]). Testimony that the victim sustained injuries that resulted inbleeding, swelling and substantial pain as a result of being struck by defendant likewiseestablishes the elements of assault in the second degree beyond a reasonable doubt (seePeople v Holmes, 9 AD3d at 691).
Defendant's remaining contentions do not require extended discussion. Testimony at thesuppression hearing supports County Court's determination that defendant's statements werevoluntary and spontaneous and, therefore, admissible (see People v Davis, 155 AD3d 1311, 1315 [2017], lvdenied 30 NY3d 1114 [2018]; People v Ero, 139 AD3d 1248, 1250 [2016], lv denied 28NY3d 929 [2016]; People v Porter,35 AD3d 907, 908 [2006], lv denied 8 NY3d 926 [2007]; People v Smith, 21 AD3d 587, 588[2005], lv denied 5 NY3d 833 [2005]). Finally, defendant claims that his sentence isharsh and excessive. Notwithstanding defendant's limited criminal history and professed remorse,in light of the brutal nature of the attack, we discern no extraordinary circumstances or an abuseof discretion that would warrant a reduction of the sentence in the interest of justice (see People v Cole, 150 AD3d1476, 1482-1483 [2017], lv denied 31 NY3d 1146 [2018]; People v Friedrick, 46 AD3d 943[2007]).
Garry, P.J., Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.